Presentation on theme: "Leadership Development Programme Cohort 18"— Presentation transcript:
1Leadership Development Programme Cohort 18 Approaches to Transboundary Water RightsDr. Zaigham Habib
2Hydro-Economic Settings Geological/physical characteristics – location, size, topographyHydrological characteristics of the water-body to be shared/allocated, watershed, water quality, .What to deal with; Drainage Basin, Watershed, international WatercourseType of water uses, infrastructureActual water uses & water demands
3Socio-Political Settings Regional and global placingPower AsymmetryInter-state interactions, cooperation, historical sharing mechanismNature of Transboundary conflict
4Upstream Extreme Position The "doctrine of absolute sovereignty" is often initially claimed by an upstream riparian. This principle, referred to as the Harmon Doctrine for the US attorney-general who suggested this stance in 1895 regarding a dispute with Mexico over the Rio Grande, argues that a state has absolute rights to water flowing through its territory (LeMarquand 1993; McCaffrey 1996). The doctrine was rejected by Harmon's successor and later officially repudiated by the US (McCaffrey 1996), was never implemented in any water treaty (with the rare exception of some internal tributaries of international waters), was not invoked as a sources for judgment in any international water legal ruling, and was explicitly rejected by the international tribunal over the Lac Lanoux case in 1957.
5Downstream Extreme Position The down-stream extreme claim often depends on climate. In a humid watershed, the extreme principle advanced is "the doctrine of absolute riverain integrity," which suggests that every riparian is entitled to the natural flow of a river system crossing its borders. This principle has reached acceptance in the international setting as rarely as absolute sovereignty. In an arid or exotic (humid headwaters region with an arid down-stream) watershed, the down-stream riparian often has older water infrastructure which is in its interest to defend.
6Upstream and Downstream adjustments The principle that rights acquired through older use, historic rights, are given a preference - prior appropriations, suits downstream developed economies.Up-stream riparians advocate "equitable utilization," since the principle gives the same weight to the present needs as those of the past. Likewise, down-stream riparians (along with the environmental and development communities) have pushed for emphasis on "no significant harm," effectively the equivalent of the doctrine of historic rights in protecting pre-existing use.The "doctrine of limited territorial sovereignty" reflects rights to reasonably use the waters of an international waterway, yet with the acknowledgment that one should not cause harm to any other riparian state.
7The Carol river crosses from the French into the Spanish Pyranees The Carol river crosses from the French into the Spanish Pyranees. In the early 1950's, France, asserting absolute sovereignty, proposed diverting water from the river across a divide towards the Font-Vive for hydropower generation -- Spain would be compensated monetarily. Spain objected, asserting absolute riverain integrity and the existing irrigation needs on its side of the border. Even when France agreed to divert back first the water needed for Spanish irrigation, then all of the water being diverted, through a tunnel between watersheds, Spain insisted on absolute riverain integrity, claiming it did not want French hands on its tap. Both absolute principles were effectively dismissed when a 1957 arbitration tribunal ruled in the case that "territorial sovereignty...must bend before all international obligations," effectively negating the doctrine of absolute sovereignty. Yet the tribunal also admonished the downstream state from the right to veto "reasonable" upstream development, thereby negating the principle of natural flow or absolute riverain integrity. This decision made possible the 1958 Lac Lanoux treaty (revised in 1970), in which it is agreed that water is diverted out-of-basin for French hydropower generation, and a similar quantity is returned before the stream reaches Spanish territory.
8Global Conventions1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourses Convention/ UNWC/ New York convention) –in force 17 August 20141992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Water Convention/ ECEWC/ Helsinki Convention) –in force 1996; amendment in force 2013 but waiting for 3 countries)ILC Draft Articles on the law of Transboundary Aquifers –no treaty “ status”
9Guiding Role of International Principles Helsinki Rules of 1966, which also provides guidelines for �reasonable and equitable� sharing of a common waterway (Caponera 1985). Article V lists eleven factors which must be taken into account in defining what is �reasonable and equitable.� There is no hierarchy to these components of �reasonable use;� rather they are to be considered as a whole. One important shift in legal thinking in the Helsinki Rules is that they address the right to �beneficial use� of water, rather that to water per se (Housen-Couriel 1994, 10). The Helsinki Rules have explicitly been used only once to help define water use -- the Mekong Committee has used the Helsinki Rules definition of "reasonable and equitable use" in formulation of their Declaration of Principles in 1975, although no specific allocations were determined.
10The 1997 Conventionriparian states along an international watercourse communicate and cooperate. Data/ information exchange, notification of possible adverse effects,protection of eco-systems, and emergency situations. "reasonable and equitable use" within each watercourse state, "with a view to attaining optimal utilization thereof and benefits therefrom," is balanced with an obligation not to cause significant harm (Tanzi 1997). Reasonable and equitable uses - seven relevant factors. (8) "the weight to be given to each factor is to be determined by its importance," and that "all relevant factors are to be considered together." “In the absence of agreement or custom to the contrary, no use...enjoys inherent priority over other uses," and"in the event of a conflict between uses..[it shall be resolved] with special regard being given to the requirements of vital human needs."
11Article 5: Equitable and reasonable utilization and participation Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits there from, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.
12Article 7: Obligation not to cause significant harm Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.
13Article 10: Relationship between different kinds of uses In the absence of agreement or custom to the contrary, no use of an international watercourse enjoys inherent priority over other uses.In the event of a conflict between uses of an international watercourse, it shall be resolved with reference to the principles and factors set out in articles 5 to 7, with special regard being given to the requirements of vital human needs.
14The principle of Equitable Utilization is enounced as “Each Basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial use of the waters of an international Drainage Basin”- the ‘Drainage Basin’ is defined as ‘a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters flowing into a common terminus’.A workable definition of what makes a utilization ‘reasonable and equitable’ ?Although what is a reasonable and equitable share ‘is to be determined in the light of all relevant factors in each particular case’ (and despite the availability of a non-exhaustive list of those relevant factors).
15Transboundary agreements negotiated during the 20th century 40% focus on hydropower - often amongst mountainous nations at headwaters of the transboundary rivers , Nepal has four treaties with India. 37%, address water allocation and include volumetric allocations among riparian countries. In cases where volumetric allocations are specified, they often are fixed, leaving little flexibility for changing flow conditions; especially problematic in the context of climate change(Hamner and Wolf 1998).
16UNIQUE ALLOCATION PRACTICES (A.T.Wolf 1999) PRINCIPLEPERCENT (NUMBER) OF TREATIESHalf of flow to each of two riparians6% (9/149)Absolute sovereignty on tributaries2% (3/149)Relinquish prior uses0.6% (1/149)Prioritize uses 3% (4/149)Equal allocations of benefits 1% (2/149)Compensation for lost benefits 7% (10/149)Payments for water
17Gaps/ limitation of the Existing Treaties Many transboundary agreements identify water allocations, fail to include any standards for the quality of waterMany transboundary agreements exclude monitoring, enforcement, and conflict resolution procedures. Only about half of treaties have provisions for monitoring, and most monitoring efforts require only the most basic elements. This is particularly problematic given that data collection and sharing can provide an important base for negotiation. While disputes can be resolved by technical commissions, basin commissions, or government officials, 22% make no provisions for dispute resolution, and 32% of treaties are either incomplete or uncertain as to the creation of dispute-resolution mechanisms (Hamner and Wolf 1998).While the conflict-resolution mechanisms in most treaties are undeveloped, new monitoring technology has introduced new enforcement possibilities. It is now possible to monitor a watershed from afar, using remote-sensed images.Hamner and Wolf (1998) suggest that the next major step in treaty development may be mutually enforceable provisions, based in part on objective and highly detailed remote images, better chemical testing, and more accurate flow computations than previously available.
18Limited functioning of the International Organizations The process is further complicated in the rare cases of formal litigation or arbitration -- there are few specialized institutions for international law making, interpreting, or enforcing. The International Court of Justice (ICJ) in the Hague, for example, hears cases only on specific points of law, only with the consent of the parties involved, and no practical enforcement mechanism exists to back up the Court�s findings. A state with pressing national interests can therefore disclaim entirely the court’s jurisdiction or findings (Rosenne 1995).Given all the intricacies and limitations involved, it is hardly surprising that the International Court of Justice has only (2?)recently decided its first case regarding international water law.
19New Trans-boundary Challenges Climate Changes impacts and CostsGroundwater aquifer sharing, rechargeProtection of catchment – snow & water resources, ecosystems, forests (access the major issue)Pollution of rivers, lakes and aquifersEnvironmental flows to keep the rivers aliveManaging extreme events – telemetry not the major issue10/28/2013
20A 21st Century Water World DemographicShiftsClimateChangeFiniteResourcesGlobalEconomyWaterQualityGovernance &InstitutionsEcologicalEconomicsCulture &ValuesWaterQuantityWaterWarsHydro-politicsHydro-diplomacyEnvironmentalSustainability
21Amending Existing Treaties to Improve Flexibility Most treaties and international agreements fail to have adequate mechanisms for addressing changing social, economic, or climate conditions.The following mechanisms are proposed to allow for flexibility in the face of change:flexible allocation strategies and water quality criteria;provisions for extreme events;amendment and review procedures; andjoint management institutions.
22Water rights and Water benefits Correlations Linked or Alternate of each other? Where to focus?Phillips et al. (2006): Benefit sharing a holistic approach, can be used in different conditions. The equitable allocation of water resources and the sharing of benefits are two sides of the same coin, an agreement on water allocations can be supported by sharing of benefits or compensation payments.Daoudy (2007) argues that the optimal water solutions may compromise the desire to achieve usage equity.To address the water allocation problems an agreement on property rights is a prerequisite for an economic exchange scheme (Richards and Singh, 2001; van der Zaag et al., 2002).
234. Towards “water rationality” * If water users acknowledge that they depend on each other,not only in terms of water but also otherwisenot only now but also in futureit may be rational for them to cooperate and forego some immediate benefitseven for upstream users/countrieseven in cases where power-differences are largeStrategy:make explicit the existing interdependencies between partiesactively seek to increase mutual dependenciesExamples:Benefit sharing - joint infrastructure developmentPayment for Environmental ServicesIssue linking - beyond the basin, beyond waterPieter van der Zaag* Alam, 199823
244. Towards “water rationality” 1. Benefit sharingJoint infrastructure development!24
25Towards “water rationality” 1. Benefit sharingBlue Nile basinSource: Goor et al., 201025
26Nile Basin Total Area: 3,031,700 km2 Riparian Countries: Burundi, Central African Republic, Democratic Republic of the Congo, Egypt, Eritrea, Ethiopia, Kenya, Sudan, Uganda, United Republic of Tanzania.Transboundary Basin Organisation: Nile Basin Initiative. Involved Actors: African Development Bank (AfDB), Centre for Environment and Development for the Arab Region and Europe (CEDARE), Community ofSahel – Saharan States (CEN-SAD), Economic and Social Commission for western Asia (ESCWA), Economic Commission for Africa (UNECA), Food and Agriculture Organisation (FAO), Global Environment Facility (GEF), Intergovernmental Authority on Development (IGAD), International Water Management Institute (IWMI), Nile Basin Initiative (NBI), Sahara and Sahel Observatory (OSS), Southern African Development Community(SADC), UNEP-DHI Centre for Water and Environment, UNESCO-IHE, UNDP), USIWI, Water Governance Facility, World Bank.Egypt and Sudan deferred current CFA - as not recognizing their water rights and uses pre 1959 agreements
27Draft articles on the Law of Transboundary Aquifers 2008 Text adopted by the International Law Commission at its sixtieth session, in 2008, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session. The report, which also contains commentaries on the draft articles, appears in Official Records of the General Assembly, Sixty-third Session, Supplement No. 10 (A/63/10).
28Article 4Equitable and reasonable utilizationAquifer States shall utilize transboundary aquifers or aquifer systems according to the principle of equitable and reasonable utilization, as follows:(a) they shall utilize transboundary aquifers or aquifer systems in a manner that is consistent with the equitable and reasonable accrual of benefits therefrom to the aquifer States concerned;(b) they shall aim at maximizing the long-term benefits derived from the use of water contained therein;(c) they shall establish individually or jointly a comprehensive utilization plan, taking into account present and future needs of, and alternative water sources for, the aquifer States; and(d) they shall not utilize a recharging transboundary aquifer or aquifer system at a level that would prevent continuance of its effective functioning.
29Transboundary Water Management Actual vs Committed vs Optimal Analytical tool for forecastingThe practice of management in the abovementioned rivers is divided into three categories (Kliot 2001):(a) Treaties and agreements stopping short of allocating water between riparian states such as free navigation treaties or institutions which were established for a sole purpose such as combating pollution (Elbe, Danube, Rhine).(b) Treaties and agreements allocating water between states (the Indus, Nile, Ganges, Jordan).(c) Agreements for joint management of internationally shared waters (Colorado and Rio Grande, Mekong, Senegal and Niger).
32Yoshihide Wada and Lena Heinrich - 2013 Assessment of trans boundary aquifers of the world—vulnerability arising from human water useYoshihide Wada and Lena Heinrich
33GRACE NASA 2009Shared qquifer between 2002 and 2008: relative to the mean for the period. These deviations from the mean are expressed as the height of an equivalent layer of water, ranging from -12 cm (deep red) to 12 cm (dark blue). NASA/Trent Schindler and Matt Rodell
34Pre Treaty Indus Basin Integration TuftsCoupled Natural and Societal System (NSS)10/28/2013
36Selected Material1. Rivers in International Law, by F.J., Berber, Stevens-Oceania, London & New York, 1959.A pre-1966 Helsinki Rules review of international law applicable to international rivers. Prof. Berber has been one of the leading scholars who developed the Helsinki Rules. The ILA Water Resources Committee is in particular indebted to him for his contribution of the Rules on Flood Control and on the Protection of Water Resources and Water Installations in Times of Armed Conflicts.2. The Law of International Drainage Basins, edited by A.H: Garretson, R.D. Hayton& C.J. Olmstaed, published for the Institute of International Law, New York University School of Law, Oceana Publications, Inc., Dobbs Ferry, New York, 1967, 916 pp. A specialized doctrinal treaties on international law as applicable to the drainage basin with case studies on the Columbia, Nile, Plata, Indus and Colorado Drainage Basins.3. International Groundwater Law, by Ludwik A. Teclaff & Albert E. Utton, OceanaPublications Inc., London, Rome, New York, 1981, 490 pp. A compendium of doctrinal articles addressing the origin and development of domestic and international law to the management of underground water resources contributedby such leading scholars, among others, as Dante A. Caponera, Robert Emmet Clark, Robert D. Hayton, Ludwik A. Teclaff and Albert E. Utton.4. Systematic Index of International Water Resources Treaties, Declarations, Acts and Cases By Basin, Vol. I & II, Legislative Studies Nos. 15 & 34, FAO, Rome, Italy,1978, 481 pp., and 1984, 332 pp.A chronological compilation of some 3700 legal instruments governing international water resources from the early IXth century until 1983, with Tables classifying water resources by country and countries by basin. For subsequent treaties, see selecting “Legal Office” - “FAOLEX” - “International Treaties”, FAO’s electronic legislative data base.Water Disputes in the Jordan Basin Region and their Role in the Resolution of the Arab-Israeli Conflict, Environment and Conflicts Project (ENCOP) Occasional PaperNo. 13, by Stephan Libiszewski, Center for Security Studies and Conflict Research, Swiss Federal Institute of Technology, Zürich, Switzerland and Swiss Peace Foundation, Bern, Switzerland, August 1995, 108 pp., available at:
37ReferencesDombrowsky, I., The role of intra-water sector issue linkage in the resolution of transboundary water conflicts. Water International 35(2):Goor, Q., C. Halleux, Y. Mohamed and A. Tilmant, Optimal operation of a multipurpose multireservoir system in the Eastern Nile River Basin. Hydrol. Earth Syst. Sci. Discuss. 7: 4331–4369Grey, D., and C.W. Sadoff, Sink or Swim? Water security for growth and development. Water Policy 9: 545–571Gupta, J., and P. van der Zaag, The politics of water science: On unresolved water problems and biased research agendas. Global Environmental Politics 9(2):Meijerink, S., Explaining continuity and change in international policies: issue linkage, venue change, and learning on policies for the river Scheldt estuary Environment and Planning A 40:Sadoff, C.W., and D. Grey, Beyond the river: the benefits of cooperation on international rivers. Water Policy 4:Van der Zaag, P., Asymmetry and equity in water resources management; critical governance issues for Southern Africa. Water Resources Management 21 (12):Wolf, A.T., 1999, Criteria for equitable allocations: the heart of international water conflict. Natural Resources Forum 23: 3-30Zeitoun, M., and N. Mirumachi, Transboundary water interaction I: reconsidering conflict and cooperation. International Environmental Agreements 8: 297–316